Gov. Rick Perry likely has the authority to grant a posthumous pardon to Timothy Cole, who died in prison after being convicted of a rape he didn’t commit, according to an opinion released today by Attorney General Greg Abbott.

Abbott’s opinion notes that pardons first must be recommended by the state Board of Pardons and Paroles but says that under the state constitution the governor “is otherwise entitled to grant pardons after a conviction in ‘all criminal cases, except treason and impeachment.'”

Abbott’s opinion doesn’t specifically mention Cole, but he was asked for his legal interpretation by Sen. Rodney Ellis, D-Houston, because of the Cole case.

Perry’s office, however, has said he doesn’t have the authority to grant a posthumous pardon. A proposed constitutional amendment to specifically give him that authority died in the Legislature last year.

Cole, who maintained his innocence, died in prison of an asthma attack in 1999. DNA evidence cleared him in 2008, and a state judge exonerated him in a court of inquiry in 2009.

Ellis in requesting the opinion last year noted there was disagreement on the issue.

A 1965 attorney general’s opinion concluded that a governor didn’t have the authority to grant a posthumous pardon because the deceased person could not accept it. That was based on an interpretation of the law that since has evolved. The U.S. Supreme Court “has since recognized that ‘the requirement of consent (to a pardon) was a legal fiction at best’ and has generally abandoned the acceptance doctrine since adopting it in 1833,” Abbott’s opinion said.

Abbott’s summary says that “we believe a Texas court would likely conclude that the Governor may grant a posthumous pardon under current Texas law, so long as all other constitutional requirements are met… We believe a court would likely conclude that the Board of Pardons and Paroles is authorized to recommend that the Governor grant a posthumous pardon.”